Groups ask Supreme Court to legalize dirty words on TV

The Supreme Court has allowed censorship of broadcasting on the grounds that …

An ideologically diverse coalition of public interest groups has submitted an amicus brief urging the United States Supreme Court to extend full First Amendment protection to broadcast media. The Federal Communications Commission has traditionally regulated the transmission of "indecent" speech and images on radio and television broadcasts. But several liberal and libertarian groups are urging the Supreme Court to strike down these regulations, arguing that technological changes have made the original constitutional justification for these regulations obsolete.

The FCC's power to regulate the content of radio and television broadcasts rests on a 1978 Supreme Court decision. Comedian George Carlin had a famous monologue about the "seven words you can never say on television." When a radio station owned by the Pacifica Foundation broadcast the program, it was fined. And in a 1978 decision, the Supreme Court upheld the fine.

The high court offered two reasons for curtailing the First Amendment protections afforded to broadcast media. First, they were "uniquely pervasive." In the 1970s, broadcast television was the only source of video content for most families. Second, broadcast media were "uniquely accessible to children," available at the flip of a switch. Hence, the government was allowed to impose regulations on broadcast media that would never have withstood constitutional scrutiny if applied to other media such as newspapers or books.

Unconstitutionally vague

The Pacifica court encouraged the FCC to use restraint in enforcing its rules against indecency. At first, the FCC limited its enforcement efforts to the seven words in the Carlin monologue. Later, the agency broadened its enforcement efforts beyond those seven words, but they continued to look the other way when stations broadcast the occasional "fleeting" expletive.

In 2004, however, the FCC adopted a more hard-line posture, holding that even a single, unscripted instance of profanity (such as Bono's use of the F-word during a 2003 broadcast of the Golden Globes) could be a punishable offense. The major television networks challenged the new rules in court, arguing that they were so vague that it was impossible to tell what was allowed.

Several CBS affiliates declined to air the Peabody Award-winning “9/11” documentary, which contains real audio footage - including occasional expletives—of firefighters in the World Trade Center on September 11th. Although the documentary had previously aired twice without complaint, following the Golden Globes Order affiliates could no longer be sure whether the expletives contained in the documentary could be found indecent. In yet another example, a radio station cancelled a planned reading of Tom Wolfe’s novel I Am Charlotte Simmons, based on a single complaint it received about the “adult” language in the book, because the station feared FCC action.

The end of broadcast censorship

The Second Circuit's decision would allow the FCC to revise its rules (perhaps returning to only regulating the "seven dirty words") and resume broadcast censorship. But a coalition of public interest groups last week filed an amicus brief urging the Supreme Court to go beyond the Second Circuit's position and declare broadcast censorship unconstitutional altogether.

The groups point out that the high court's 1978 reasoning no longer applies to modern television. Whereas broadcast television was once the only source of video content in most households, families now have a wide variety of alternatives, including cable and satellite television, DVD players, and online streaming options. Today, only a small fraction of households—between 8 and 15 percent, according to studies cited in the brief—rely exclusively on broadcast television for home entertainment. Broadcast television is no longer "pervasive."

Nor is it "uniquely accessible to children." The introduction of the V-chip in the 1990s increased parents' control over the television content their children watch. And as Adam Thierer has demonstrated, that was just the beginning. The proliferation of alternative sources of content has made it feasible for parents to eschew broadcast television altogether in favor of DVD players, cable television, online games and videos, and the like. And many of these media offer robust parental controls of their own.

Since neither of the traditional rationales for broadcast censorship apply in the modern world, the groups argue that the courts should reconsider their original justification for allowing the FCC to regulate broadcasting content. Indeed, the Second Circuit itself hinted that it would have liked to reach that result, but didn't do so because it was bound by the Supreme Court's Pacifica decision. The Supreme Court itself, of course, has the option to overturn that decision and give broadcasting the same robust First Amendment protections that the courts have given to most other media.

The brief was signed by the Cato Institute, the Center for Democracy and Technology, Public Knowledge, the Electronic Frontier Foundation, and TechFreedom.

Disclosure: I'm an adjunct scholar at the Cato Institute, an unpaid position. I was not involved in the preparation of this amicus brief.

181 Reader Comments

Congress shall make no law respecting an establishment of religion*, or prohibiting the free exercise thereof*; or abridging the freedom of speech*, or of the press*; or the right of the people peaceably to assemble*, and to petition the Government for a redress of grievances.

edit: rant mode on: sadly, I can't find the archives of my Dad's newspaper articles, but PBS had a documentary called "A Company of Soldiers" a few years back. http://www.pbs.org/wgbh/pages/frontline/shows/company/ There was a bit of a controversy over the documentary, as the original edit included 13 curses spoken by soldiers in the field; one was spoken by a soldier second after nearly being killed by gunfire. A number of local PBS affiliates chose to edit the documentary, bleeping those words, after pressure from certain groups over the naughty words.

For fear of being fined, men and women whose lives on on the line, who are in life-or-death situations seeing horrible things and dealing with tragic events, were censored.

Anyone who censors the realities of war, from its violence to it psychological damage to its language is simply wallowing in willful ignorance. And the unclarified FCC rules regarding fleeting expletives and context means that we as a nation allowed our soldiers to be censored. IMO no matter how you feel about these or any wars, that's bullshit.

I fully support a completely uncensored media diaspora, most especially within television. The reality is that most of us know more dirty words before the age of eight, and parents can and should monitor more of what their kids digest rather than relying on the gummint to nanny them.

Kids hear the filthiest language from other kids. If you want to keep kids from being exposed to "bad" words, then you have to keep them from other kids. I started first grade 40 years ago not knowing any "bad" words as neither of my parents cursed around us. I was actually shocked at the way the other kids spoke in my elementary school, so much so I actually mentioned it to my dad. However by the time I left elementary school for high school, it was a habit that had been so deeply ingrained that to this day, I have a very hard time not cursing when I'm angry. And I picked up the habit from other 6, 7 and 8 year olds.

Unlike your family, many out there do _not_ use such eloquent language in everyday speech, and would rather their kids not hear such on television.

if they don't hear it on tv, they'll hear it at school or on the internet. my parents don't swear and I didn't have premium cable or internet when I was a kid, but I still managed to learn a wide variety of bad words.

Network tv is a neurotoxic wasteland of realitytv, crime shows, and sports; part of the reason is that they just cannot produce compelling content because of the censorship they face.

True Blood, Deadwood, Breaking Bad, etc etc would have all been absolutely terrible if they were produced for regular TV (commercial intrusions aside). Jettisoning censorship laws could possibly invigorate a dying sector.

Unlike your family, many out there do _not_ use such eloquent language in everyday speech, and would rather their kids not hear such on television.

Who said it was the parents? They were far more likely to have heard those words at school, censoring the TV's not going to make any difference. If you don't like it, don't watch, or use one of the myriad other means of control at your disposal that don't involve the government censoring things for everybody else that isn't quite as prudish.

Unlike your family, many out there do _not_ use such eloquent language in everyday speech, and would rather their kids not hear such on television.

Have you heard of this new invention? It's called "the internet" and makes the claim that the only way for kdis to hear swear words like say fuck is on TV (oh goodness I've now corrupted all those innocent children reading the comments ) rather laughably.

Not that every school yard was a much simpler way to get every vocabulary a child could ever be interested in anyhow - I hope your solution to that problem isn't to keep kids in isolation until they're 18.

And I will immediately stop watching any show that starts using obscenities. I don't enjoy hearing them on TV shows, and I don't use them in everyday life, because they are not necessary. They are a perfect example of crude and ignorant behavior, although I am sure several people will immediately respond violently to me justifying their right to act like crude and ignorant morons. Go for it. I don't, and won't, have any respect for you, so I won't demean myself by responding to you.

And I will immediately stop watching any show that starts using obscenities. I don't enjoy hearing them on TV shows, and I don't use them in everyday life, because they are not necessary. They are a perfect example of crude and ignorant behavior, although I am sure several people will immediately respond violently to me justifying their right to act like crude and ignorant morons. Go for it. I don't, and won't, have any respect for you, so I won't demean myself by responding to you.

while i wont immediately stop watching, i will stop watching if they are cursing just to curse.

Its not really an added bonus, but its not a detractor in my oppinion. but your entitled to yours.

Network tv is a neurotoxic wasteland of realitytv, crime shows, and sports; part of the reason is that they just cannot produce compelling content because of the censorship they face.

True Blood, Deadwood, Breaking Bad, etc etc would have all been absolutely terrible if they were produced for regular TV (commercial intrusions aside). Jettisoning censorship laws could possibly invigorate a dying sector.

I curse more than I should in real life, and am not terribly bothered with it in TV/movies so long it's not too extreme and used just to be used. We follow True Blood and Breaking Bad and have no issues with the language in those shows, but Deadwood… it was intolerable. I really wanted to watch it too, but the incessant cursing just for the sake of cursing just got in the way.

Just another example of contempt for the commons. The airwaves are public, provided and paid for with everyone's tax dollars. Generally keeping them PG so that, you know, people BESIDES adults can enjoy them, isn't too much to ask.

And I will immediately stop watching any show that starts using obscenities. I don't enjoy hearing them on TV shows, and I don't use them in everyday life, because they are not necessary. They are a perfect example of crude and ignorant behavior, although I am sure several people will immediately respond violently to me justifying their right to act like crude and ignorant morons. Go for it. I don't, and won't, have any respect for you, so I won't demean myself by responding to you.

I agree with this sentiment. Such words are a distraction and really just suggest that one doesn't know how to express themselves--they are placeholders for thought.

We agree as a society to protect our children from all kinds of things, but don't think that being insensitive and disgusting to others is one of those things. What does that say about us as a society? About our priorities?

There are plenty of ways to get any content you like--let that suffice, instead of defaulting to all offensive all the time.

And I will immediately stop watching any show that starts using obscenities. I don't enjoy hearing them on TV shows, and I don't use them in everyday life, because they are not necessary. They are a perfect example of crude and ignorant behavior, although I am sure several people will immediately respond violently to me justifying their right to act like crude and ignorant morons. Go for it. I don't, and won't, have any respect for you, so I won't demean myself by responding to you.

Some of you have apparently never hit your thumb with a hammer in 30° weather.

Regardless, thank Christ on a Stick® we're finally getting rid of these ridiculously Puritanical laws. The fact that the only halfway-decent TV shows anymore all reside on the premium channels like Showtime says a lot.

But it's okay for them to see stabbings, drug use, be-headings and other similar things but heaven forbid they hear a word they likely already hear at school or just walking down the street?

People are weird.

It was many years ago, before Netflix was pervasive as it is now, and my girlfriend and I were in Blockbuster picking up some movies. There was a woman in front of us with a child that I would guess was around 12 years old.

She had a copy of one of the iterations of the torture-porn "Saw" franchise, and was asking the clerk whether this movie would be appropriate for her son. The clerk informed her that the movie had pretty gruesome scenes of torture and gore, to which the mother responded: "Oh, that's all fine. I was just wondering if it had any nudity."

Upon being informed that there was some nudity, the woman instructed her son to put the movie back on the shelf.

And I will immediately stop watching any show that starts using obscenities. I don't enjoy hearing them on TV shows, and I don't use them in everyday life, because they are not necessary. They are a perfect example of crude and ignorant behavior, although I am sure several people will immediately respond violently to me justifying their right to act like crude and ignorant morons. Go for it. I don't, and won't, have any respect for you, so I won't demean myself by responding to you.

I agree with this sentiment. Such words are a distraction and really just suggest that one doesn't know how to express themselves--they are placeholders for thought.

You will seriously refuse to watch a war documentary because soldiers sometimes swear?

Maybe it's just me, but it seems weird (American?) to "cushion" journalism directed for adults by writing "f-word" instead of "fuck" in this article. We won't take any damage from reading it.

Sometimes journalism and realistic fiction need to to contain them to portray reality in a correct/authentic manner. I wouldn't like other uncomfortable "facts" to be censored either! To me it is disturbing that the character Jack Bauer from tv-series "24" can brutally torture people with electricity but not say fuck.

I can't tolerate spiders so I don't watch shows with/about spiders. I can only suppose people who don't tolerate swear words will avoid shows that contain them.

Just another example of contempt for the commons. The airwaves are public, provided and paid for with everyone's tax dollars. Generally keeping them PG so that, you know, people BESIDES adults can enjoy them, isn't too much to ask.

Yes it is, your tax dollars don't give you veto power over the first amendment speech of other people.

I don't mind if people swear, or cut each other up, or whatever. I just want to be able to avoid it when I'm looking for entertainment.

Absolutely agreed. A reliable manner for voluntarily avoiding certain content is the best solution, IMO.

sep332 wrote:

Also, there's a difference between the swearing and nudity that people are trying to avoid, and the violence and gore they don't seem to mind: The gore is fake. The swearing and nudity is not.

But the gore is indicative of violence against persons; swearing and nudity does no physical harm to the viewer. Are you arguing that naughty language or the sight of the human body causes damage to the viewer, and is therefor more detrimental than showing violence?

Also, the words themselves are just sounds. Do you get offended when someone standing next to you swears in Chinese? Why not? The power and potential damage from such words stems from the emotion behind them; the anger hate, etc. If you replace one word with 'sugar' but still use it as a hate-filled vitriol against another person, it would seem to me to be just as bad as the original curse.

Actors, however, are delivering curses while acting. The emotion behind the curse is as fake as the gore.

Nipples, you are correct, are still nipples. But they are pictures of nipples. Is that ok? What about sculptures of nipples? what about a picture of a sculpture of a nipple? Why are male nipples ok, but female nipples bad?

As a Christian (an internet rarity, it seems), I have no problem with so-called adult language in television programming. No one is forcing me to watch anything; I can choose what my family and I watch. Personally, I don't mind swearing, violence, or nudity in movies or shows, as long as it's pertinent to the story and not needlessly gratuitous. Admittedly, I'm not as easily offended as some of my less open-minded compatriots, but I'd wager it's not just followers of religion that have problems with this content.

In my mind, at least, it just comes down to this: if you are going to be offended by naughty words, boobies, or blood, check the show's ratings (which they will doubtless have) and don't watch the ones with content that will offend you.

Oh great, the great revival of television is thousands of generic sitcoms with people swearing non-stop at each other. Because we all know that even though American television networks are the pinnical of morality they are also one of the biggest groups of bottom feeders around and are more than happy to start filling every show with senseless foul language to boost ratings.

In addition there is a big difference between knowing swear words and using them. I know that my son knows a large number of obscenities, but he knows fully well that I would be extremely displeased if they started coming out of his mouth.

But lets face it, for years and years I've been watching less and less of the big networks and more and more of the specialty channels, if only for the reason that I can feel the IQ of the room drop by an easy 50 points by simply turning on Fox.

About time!Having kids in the house does tend to skew your vocabulary, as I did with my nephew and niece. Until I had to pick them up from school, I was assaulted by language that would make a sailor blush coming from every "little angel" in the schoolyard. Some words I hadn't even heard before. Either kids are growing up faster than ever, or the parents refuse to remember what childhood is actually like and pull a Kyles mom.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.